Airbus Scandal: It seems Mahama is not guilty-Agyebeng

By Daniel NONOR, Accra

The Special Prosecutor, Kissi Agyebeng says persons accused of bribery in the infamous Airbus scandal, deemed payments to them as their legitimate expectations under an arrangement of success -based commissions from the sale and not bribes as widely speculated.

Although two courts, one each in the United States of America, the United Kingdom, found element of bribery in the Airbus deal for the purchase of military transport aircraft  , which subsequently led to a  Deferred Prosecution Agreement, between Airbus SE and the relevant authorities in the three jurisdictions, the OSP says “the conclusions by the UK and US authorities appear to be solely from the perspective of Airbus and what Airbus perceived as the real intentions of its employees in their dealings with their intermediaries and the Government of Ghana.”

 The coordinated judicial decisions by the foreign courts imposed global financial sanctions in excess of 3.9 billion Euros on Airbus SE.

The OSP maintains that although it does not question the conclusions of the UK and US authorities which pointed to clear cases of bribery on the basis that it is not privy to “the raw body of evidence available to the UK and US authorities, apart from the content of the DPAs”, Ghana’s jurisprudence on corruption and corruption-related offences do not lend themselves to founding criminal culpability in the context of the UK and US outcomes

The Special Prosecutor says its investigations into the matter did not find any evidence of bribery against president John Dramani Mahama who it identified as government official 1  and his blood brother ,Samuel Adam Mahama referenced as intermediary 5 or consultant 4  as referenced by the  UK and US courts.

Statement of facts by the UK’s Serious Fraud Office on the matter indicated that a number of Airbus employees made or promised success-based commission payments of approximately five million Euros to Samuel Adam Mahama .  Again, false documentation was created by or with the agreement of Airbus employees in order to support and disguise these payments. The payments were intended to induce or reward improper favour by former President John Dramani Mahama toward Airbus.

Furthermore, from 2009, Samuel Adam Mahama  and his associates worked on the sales to the Government of Ghana without any written consultant agreement. This included liaison with Former president John Dramani Mahama regarding the potential Airbus C-295 sale.

The OSP stated that notwithstanding the definitive pronouncements by the UK and the US courts on the accepted culpability of Airbus, beyond reasonable doubt, for bribery in relation to the sale to Ghana of C-295 aircraft, it was imperative that criminal investigations be carried out by relevant Ghanaian authorities for several reasons

The OSP argued further that the UK and US judicial decisions only establish criminal culpability in the context of the laws of the two jurisdictions. And that It does not automatically follow that the acts accepted as proved beyond reasonable doubt in those jurisdictions amount to criminal offences in the reckoning of Ghanaian law.

Hence, to rely solely on the UK and US decisions, without more, as proof of criminal culpability, would be akin to seeking to enforce the criminal laws of the UK and US in Ghana – which is impermissible.

In its findings , the OSP indicates “the OSP investigation found no evidence that former President Mahama was involved or played any role in the procurement and maintenance of the agency relationship between Airbus and Foster and his associates in respect of the purchase by the Government of Ghana of military transport aircraft from Airbus. And it appears to the OSP that the direct communications and meetings between former President Mahama and officials of Airbus to close the deal were actuated by good intentions on the part of the former.”

It OSP noted further that while the facts from the US and UK courts are that employees of Airbus designed the payments as bribes intended to court favour with Ghanaian officials involved in the deal, especially, former President John Dramani Mahama, the intermediaries appear to expect the and receive the payments as their legitimate expectations under an arrangement of success-based commission for the sale of the aircrafts.

On the involvement of former President Mahama’s brother in the deal, the OSP states thus: “It also appears that Foster and his associates became involved as intermediaries in the Airbus-Ghana deal intermediary role at the time his brother served as the Vice President of Ghana was a case of luckless coincidence that attracted the disapproval of the UK and US authorities. after the decision by the Government of Ghana in preference of the C-295 aircraft. Therefore, it seems that Foster’s Airbus”

The OSP concluded that it found no evidence that suggests that the involvement of Foster as an intermediary of Airbus and the direct communications and meetings between former President Mahama and officials of Airbus to close the deal between Airbus and the Government of Ghana amounted to any corruption and corruption-related offence.

 The Special Prosecutor has subsequently  directed the closure of its investigations  into alleged bribery of high-ranking Ghanaian officials by Airbus SE, through intermediaries, in respect of the sale of military transport aircraft by Airbus SE to the Republic of Ghana between 2009 and 2015.

“The OSP would not institute criminal proceedings against any person in respect of this investigation” Furthermore,the Special Prosecutor has also directed its authorised officers to rescind the 13 May 2020 warrants of arrest obtained from the Circuit Court, Accra for the arrest of Samuel Adam Foster (also known as Samuel Adam Mahama), Philip Sean Middlemiss, Leanne Sarah Davis, and Sarah Furneaux.